Saroj Kumar Mishra, Bhubaneswar V. ITO, Bhubaneswar

ITA 187/CTK/2011

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3774 (ITAT-CUTTACK)
• Duration Of Justice: 6 year(s) 1 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 23-05-2017
• Assessment Year: 2005-2006
• Appeal Filed On: 07-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K PRADHAN
• Assessee Lawyers: P C SETHI
• Keywords: Assessment record

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK SMC BENCH, CUTTACK BEFORE SHRI N.S SAINI, ACCOUNTANT MEMBER ITA NO.187/CTK/2011 ASSESSMENT YEAR : 2005 - 06 SAROJ KUMAR MISHRA, 162, 1 ST FLOOR, BAPUJI NAGAR, BHUBANESWAR. VS. ITO, WARD 1(2), BHUBANESWAR PAN/GIR NO. ABKPM 8495 J (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI P.C.SETHI, AR REVENUE BY : SHRI D.K.PRADHAN, DR DATE OF HEARING : 23 /05/ 2017 DATE OF PRONOUNCEMENT : 26 /0 5 /2017 O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) - 1, BHUBANESWAR , DATED 21.1.2011 , FOR THE ASSESSMENT YEAR 2005 - 06 . 2. AT THE OUTSET, LD A.R. OF THE ASSESSEE SUBMITTED THAT ON 20.5.2015, THE ASSESSEE HAS FILED A PETITION FOR ADMISSION OF ADDITIONAL GROUND OF APPEAL, WHICH IS PURELY A LEGAL ISSUE AND GOES TO THE ROOT OF THE MATTER AND PRAYED THAT THE SAME MAY BE ADMITTED. THE SAID ADDITION AL GROUND OF APPEAL READS AS UNDER: THAT THE INITIATION OF PROCEEDING U/S.147 OF THE ACT IS ILLEGAL AND CONTRARY TO THE PROVISIONS OF THE ACT AS ORIGINAL ASSESSMENT 2 ITA NO.187/CTK/2011 ASSESSMENT YEAR :2005 - 06 HAS BEEN PASSED U/S.143(3) OF THE ACT AND THE AO BEING BELOW THE RANK OF ASSISTANT COMMI SSIONER HAS ISSUED NOTICE U/S.148 OF THE ACT WITHOUT TAKING SANCTION FOR ISSUE OF NOTICE U/S.151(1) OF THE ACT FROM JOINT COMMISSIONER OF INCOME TAX AND FOR WHICH THE ASSESSMENT ORDER PASSED ON THE BASIS OF SAID NOTICE IS LIABLE TO BE QUASHED. 3. LD D.R. HAD NO OBJECTION TO THE ADMISSION OF ABOVE ADDITIONAL GROUND OF APPEAL RAISED BY THE ASSESSEE. 4. IN VIEW OF ABOVE, THE ADDITION AL GROUND OF APPEAL RAISED BY THE ASSESSEE WAS ADMITTED BY THE BENCH AND THE PARTIES WERE ALLOWED TO MAKE THEIR SUBMISSIONS THER EON. 5. LD A.R. OF THE ASSESSEE SUBMIT TED THAT IN THE PRESENT CASE, NOTICE U/S.148 OF THE ACT FOR REOPENING OF THE ASSESSMENT WAS ISSUED BY THE ITO, WARD 1(2), BHUBANESWAR WITHOUT PRIOR APPROVAL OF THE JOINT COMMISSIONER OF INCOME TAX AFTER RECORDING THE FOLLOWING REASONS: NOTICE U/S.148 ISSUED TO THE ASSESSEE CALLING FOR THE RETURN, AS THE INCOME CHARGEABLE TO TAX ESCAPED ASSESSMENT AS UNDER: I) DIFFERENCE ON GROSS RECEIPTS AND TDS CERTIFICATE - RS.8,03,646/ - II) INTEREST OF RS.1,75,785/ - TO BE EXAMINED U/S.40 (A)(IA). III) DIFFERENCE ON BANK ACCOUNT - RS.19,000/ - IV) TO EXAMINE INTERIOR DECORATOR U/S.40(A)(IA). 6. HE SUBMITTED THAT AS PER THE PROVISIONS OF SECTION 151(2) OF THE ACT, NO NOTICE SHALL BE ISSUED U/S.148 OF THE ACT BY THE ASSESSING OFFICER, WHO IS BELOW THE RANK OF JOINT COMMISSIONER OF INCOME TAX , UNLESS THE JOINT COMMISSIONER IS SATISFIED, ON THE REASONS RECORDED BY SUCH ASSESSING OFFICER, THAT IT IS A FIT CASE FOR THE ISSUE OF SUCH NOTICE. HE ARGUED THAT NO 3 ITA NO.187/CTK/2011 ASSESSMENT YEAR :2005 - 06 APPROVAL OF THE JOINT COMMISSIONER HAS BEEN OBT AINED BY THE ASSESSING OFFICER BEFORE ISSUE OF NOTICE U/S.148 OF THE ACT TO THE ASSESSEE AND, THEREFORE, NOTICE U/S.148 IS BAD IN LAW AND CONSEQUENTLY, THE ORDER PASSED PURSUANT TO SUCH NOTICE IS ALSO BAD IN LAW AND HENCE, SHOULD BE CANCELLED. 7. LD D.R. VERY FAIRLY CONCEDED AFTER GOING THROUGH THE ASSESSMENT RECORDS WITH HIM THAT NO SUCH APPROVAL OF THE JOINT COMMISSIONER WAS OBTAINED BY THE ITO IN THE PRESENT CASE BEFORE ISSUANCE OF NOTICE U/S.148 OF THE ACT TO THE ASSESSEE FOR REOPENING OF THE ASS ESSMENT. 8. IN THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED VIEW THAT AS THE NOTICE ISSUE D U/S.148 OF THE ACT TO THE ASSESSEE IS NOT IN ACCORDANCE WI TH THE PROVISIONS OF SECTION 151 (2) OF THE ACT I.E. THE REQUIRED APPROVAL OF THE JOINT COMMISSIONER WAS NOT OBTAINED BY THE ITO BEFORE ISSUANCE OF NOTICE U/S.148 OF THE ACT, WHICH FACT HAS BEEN VERY FAIRLY ADMITTED BY LD D.R. DURING THE COURSE OF HEARING, THE IMPUGNED NOTICE ISSUED U/S.148 OF THE ACT IS BAD IN LAW AND THE ORDER PASSED PURSUANT TO SUCH NOTICE IS ALSO BAD IN LAW, THEREFORE, I QUASH THE REASSESSMENT ORDER PASSED U/S.147 OF THE ACT DATED 30.12.2009 AND ALLOW THE GROUND OF THE APPEAL OF THE ASSESSEE. 9. AS I HAVE ANNULLED THE ASSESSMENT ORDER PASSED U/S.147 OF THE ACT DATED 30.12.2009, OTHER GROUNDS OF APPEAL RAISED ON THE MERITS OF THE ADDITION BY THE ASSESSEE IN THE APPEAL HAVE BECOME ONLY ACADEM IC IN NATURE AND HENCE, INFRUCTUOUS. 4 ITA NO.187/CTK/2011 ASSESSMENT YEAR :2005 - 06 10. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED. O RDER PRONOUNCED IN THE OPEN CO URT ON 26 /05/2017 IN THE PRESENCE OF PARTIES. SD/ - ( N.S SAINI) A CCOUNTANT MEMBER CUTTACK; DATED 26 /05/2017 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER, SR.PRIVATE SECRETARY ITAT, CUTTACK 1. THE APPELLANT : SAROJ KUMAR MISHRA, 162, 1 ST FLOOR, BAPUJI NAGAR, BHUBANESWAR. 2. THE RESPONDENT. ITO, WARD 1(2), BHUBANESWAR 3. THE CIT(A) - 1, BHUBANESWAR 4. PR.CIT - 1, BHUBANESWAR. 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY// 5 ITA NO.187/CTK/2011 ASSESSMENT YEAR :2005 - 06 DATE INITIAL 1. DRAFT DICTATED ON 23 /05 /17 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 23 /05 /17 (DICTATION PAD HAS BEEN ENCLOSED ALONG WITH ORIGINAL FILE) SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS /PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. FILE SENT TO THE BENCH CLERK SR.PS 8. DATE ON WHICH FILE GOES TO THE H.C. 9. DATE ON WHICH FILE GOES TO THE SPS 10. DATE OF DISPATCH OF ORDER.